Checkpoint ruled unconstitutional; DUI case dropped

Published: Tuesday, May 13, 2014 at 5:59 p.m.

Last Modified: Tuesday, May 13, 2014 at 5:59 p.m.

A judge has granted a defense attorney's motion to suppress evidence from a December 2013 checkpoint by the Ocala Police Department after finding the checkpoint to be unconstitutional, ultimately resulting in the State Attorney's Office dropping the case.

County Judge Thomas Thompson III ruled that the totality of OPD's variations from a designated operations plan, selected prior to the checkpoint, violated guidelines set out in legal precedents.

“Therefore the checkpoint ran afoul of the constitutional protections to be provided to motorists whenever they are subjected to being stopped by law enforcement at such a checkpoint,” Thompson wrote.

The order came after the judge presided over an evidentiary hearing in the case on April 17, during which several police officers testified.

Sgt. Mike Sommer testified to being in charge of the operation and using his discretion to keep the checkpoint running efficiently.

That exercise of discretion, however, violated the strict compliance with checkpoint guidelines required under Florida law, according to Thompson.

The scheduled Low Manpower Comprehensive Roadside Safety Checkpoint in question occurred on Dec. 7, 2013, in the 700 block of South Magnolia Avenue.

Donna Wimmer entered the checkpoint driving a white 2010 Nissan pickup and was alerted to the checkpoint by Officer D.E. Wright.

Wright noticed a very strong alcoholic odor coming from the vehicle and noted in his arrest report that Wimmer's words were slurred. He also said she had difficulty multi-tasking, showed signs of nystagmus, and had difficulty performing field sobriety tests.

Wimmer told police she had not been drinking. Wimmer's passenger, Carlos Ortiz, said the pair had been drinking but he only knew Wimmer to have one drink.

“The reason why I said that, was I had never had anything like that happen to me before and it's scary,” Wimmer said via phone Tuesday. She said she had one drink with dinner that night and had never been in trouble before so she didn't know how to react.

At the checkpoint, Wright arrested Wimmer, who refused to take a blood alcohol content test.

Wimmer, 50, said her refusal caused her to lose her license for one year.

“The charges have been dropped, but my ordeal still continues,” she said.

She had to enroll in a DUI class, and now calls the ordeal a bad learning experience and hopes others will learn from her situation. Wimmer said she avoids the checkpoint area and has flashbacks to that night,

The State Attorney's Office charged Wimmer with DUI impairment. State law requires a driver either have a blood alcohol content above the state limit or impaired faculties as an element of the charge. Citing the judge's ruling, the state has since dropped the charge.

In a motion to dismiss, defense attorney Stacy Youmans argued that the evidence from the checkpoint should be suppressed because the Ocala Police Department Operations Plan No. 2013-023 failed to satisfy constitutional requirements, and that law enforcement deviated from the plan during the checkpoint.

“As well-intentioned as law enforcement may be with DUI checkpoint stops, the individual's constitutional rights must be zealously protected,” said Youmans in a statement after the judge's decision.

Ocala police officials did not reply to requests for comment on the judge's order.

In her motion to dismiss, Youmans detailed 23 arguments where she believed deviations or deficiencies in the plan existed, including:

Officers who were designated to one position in the plan performed other tasks at the scene outside their specified plan roles.

Conflicting testimony from officers as to whether proper procedure was followed.

Allowing a paramedic to pass through without being stopped despite plan rules that every car must stop.

“Pursuant to the unconstitutional checkpoint, the defendant was improperly detained and arrested for Driving Under the Influence,” she wrote in her motion.

In his order, Thompson stated the plan's guidelines violated Fourth Amendment protections because the guidelines failed to properly limit the discretion of officers during the checkpoint, and officers did not strictly comply with the guidelines as required by the Florida Supreme Court.

In his order, Thompson references evidentiary hearing testimony given by Sommer, who testified to being in charge of the operation.

Sommer testified using his discretion to order officers to disregard written guidelines when towing the defendant's car. He said he was ensuring compliance with other OPD towing policies, and that the two sets of policies conflicted.

Thompson pointed out that even if Sommer disregarded the checkpoint guidelines to conform to other OPD protocol, this still violated the checkpoint guidelines.

Sommer also explained that fluidity is necessary in operating a checkpoint, and therefore assignments at the checkpoint were subject to change.

Thompson also stated in his order that evidence presented during the case showed other OPD failures to comply with checkpoint guidelines, including:

Failure to place marked patrol cars with flashing lights at both ends of the checkpoint.

Failure to record audio or video whenever possible at the scene in accordance with the guidelines.

Failure to carry a flashlight with a traffic wand.

Wimmer is grateful the charge has been dropped, but wishes there was some way for her to collect damages, like she would in an auto accident.

“It should be a tremendous comfort to this community to know its judicial system is standing sentinel to protect its constitutional rights,” Youmans said in a statement.

Contact April Warren at 867-4065 or april.warren@ocala.com.

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